Tucson, AZ — Late yesterday, a federal judge threw out the Department of Justice’s flawed ‘McKittrick Policy’ under which the government only prosecuted killers of animals on the Endangered Species Act’s (ESA) list of imperiled species when it could prove the killer knew the exact biological identity of the species s/he was harming. The decision came as a result of a challenge brought by WildEarth Guardians and the New Mexico Wilderness Alliance in 2013.

Because of the defective policy, the government declined to prosecute people who killed protected species, including critically endangered Mexican wolves, gray wolves like ‘Echo’ the Grand Canyon wolf — who was shot by a coyote hunter — whooping cranes, condors, and grizzly bears.

“The end of the McKittrick Policy is a crucial victory for critically imperiled animals including Mexican wolves and grizzly bears,” said Bethany Cotton, wildlife program director for WildEarth Guardians. “Wildlife killers who are either profoundly careless or worse, who intentionally target protected animals, no longer have a get-out-of-jail-free card by claiming they did not know the identity of the animals they kill.”

The Court held: “…the Court agrees with Plaintiffs that the McKittrick policy is outside the range of prosecutorial authority set out in [the] ESA’s comprehensive conservation scheme because it eviscerates the deterrent effect of the ESA criminal enforcement statutes. In other words, prosecutions prevented by the McKittrick policy result in little to no protection for the Mexican wolf and cause direct and real harm…to this protected species.” Opinion at 11.

“The Court’s ruling is a victory for endangered species across the country, but especially for those like the Mexican gray wolf, whose highest cause of mortality is illegal killing,” said Judy Calman, staff attorney for the New Mexico Wilderness Alliance. “This decision is an affirmation of Congress’s intent that endangered species recovery should be the highest priority for federal agencies, and that people who harm listed species should be held accountable under the law”

The Court reasoned: “In adopting ESA’s public welfare offenses, Congress recognized that killing wildlife is not an entirely innocent act because a killer is knowingly engaged in a lethal activity, using a deadly device, which places him or her in a position of responsibility in relation to the public. Congress placed the burden to know the identity of the wildlife species being killed on the killer.” Opinion at 40.

“This internal DOJ policy to arbitrarily limit its own prosecutorial discretion was abhorrent and directly conflicted with its enforcement responsibilities. This abdication resulted in dozens of wolves being illegally shot without penalty, which in turn undoubtedly led to additional killings,” said Mark Allison, executive director at New Mexico Wilderness Alliance. “We’re gratified by the ruling and eager to take other necessary steps to ensure that the Mexican gray wolf recovery effort is successful.”

The court’s ruling means the Department of Justice may no longer rely on the unlawful McKittrick policy when making decisions whether to prosecute those who illegally kill wildlife protected by the Endangered Species Act.

“This ruling is important because it ensures careless hunters can no longer hide behind the ‘shoot first, ask questions later’ mindset that led to the tragic deaths of many endangered Mexican wolves and other imperiled animals,” said John Horning, executive director of WildEarth Guardians. “The case powerfully affirms the longstanding ethical tenet that hunters are responsible for knowing their prey—before they shoot to kill.”

The organizations were represented by attorneys Steve Sugarman and Judy Calman.

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Additional excepts from the ruling:

“Necessarily, the narrow construction of criminal liability under the McKittrick policy, which DOJ has consciously and expressly adopted, is a complete abdication of DOJ’s statutory responsibility under ESA.” Opinion at 17.

“The McKittrick policy, implemented as a prosecutorial policy, moots the power retained by the trial courts to say what the law is and ensures they will not be afforded opportunities to decide what law is warranted and appropriate on facts analogous to those that existed in McKittrick.”

Opinion at 18.

“The McKittrick policy violates the APA because it is based on the DOJ’s incorrect belief that it cannot prosecute mistaken and/or careless wolf takings. The ESA is a public welfare statute and this context defeats the general presumption that mens rea attaches to every fact constituting the offense. Under ESA, it is a misdemeanor offense to knowingly shoot wildlife, if the animal shot is a protected species. Because Congress created this vigorous enforcement scheme to conserve endangered and threatened species, including the Mexican gray wolf, the DOJ has abdicated its statutory responsibility by adopting the McKittrick policy which precludes, without discretion, prosecutions for mistakenly and/or carelessly taking, i.e., shooting, a wolf.” Opinion at 41.

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WildEarth Guardians works to protect and restore the wildlife, wild places, wild rivers and health of the American West.

New Mexico Wilderness Alliance is dedicated to the protection, restoration, and continued enjoyment of New Mexico's wildlands and wilderness areas, and has been working to support recovery of the Mexican gray wolf since 1997.

The New Mexico Wilderness Alliance has been leading conservation efforts in Doña Ana County since 2004, when we opened our Las Cruces field office. On May 21, 2014, after a decade of work, President Barack Obama designated the Organ Mountains-Desert Peaks National Monument by use of the Antiquities Act. This move by the president safeguards nearly 500,000 acres of culturally, historically and biologically rich land in Doña Ana County. We continue to work for wilderness areas within the new national monument. Read more about our campaign here.Read more about our victory here.

The Rio Grande del Norte has shaped the lives of the people who have lived and visited the area for so many generations. Since 2007, the New Mexico Wilderness Alliance has been working on permanent protection of Rio Grande del Norte. Rio Grande del Norte was designated as a national monument Monday, March 25, 2013, by President Obama. NM Wild is now pushing for wilderness designation within the national monument.

Rising 1,110 feet from the surrounding plains, the Sabinoso unit sits upon the Canadian Escarpment, which is composed mostly of the Jurassic Morrison Formation and Triassic Chinle Shale. Sabinoso became Wilderness on March 24, 2009, when President Obama signed into law the Omnibus Public Lands Management Act of 2009. The area has fantastic ecological, scenic, recreational and cultural values.

The designation of Ojito Wilderness in 2005 was one of the New Mexico Wilderness Alliance’s first conservation victories. In the mid-90s, NM Wild formed and established itself as the statewide grassroots voice for wildlands. In the mid-2000s, the organization started pushing for Ojito Wilderness. Efforts included collaboration with the Zia tribe, New Mexico Gov. Bruce King and other statewide elected officials. After passing through both the U.S. House of Representatives (unanimously) and U.S. Senate, President George W. Bush signed the Ojito Wilderness Act into law on Wednesday, October 26, 2005. Read about our victory here.